Henman v. Westheimer

Citation85 S.W. 101,110 Mo.App. 191
PartiesCHARLES HENMAN, Appellant, v. FERDINAND WESTHEIMER et al., Respondents
Decision Date06 February 1905
CourtCourt of Appeals of Kansas

Appeal from Buchanan Circuit Court.--Hon. H. M. Ramey, Judge.

REVERSED AND REMANDED (with directions).

Cause reversed.

Samuel S. Shull for appellant.

(1) The constable had no right or lawful authority to tamper with the writ or summons issued by the justice. Even the justice who issued the writ could not make such a change after it left his hands. Trigg v. Ross, 35 Mo. 165; 1 Freeman on Executions (3 Ed.), sec. 47; Cope v. Snider, 99 Mo.App. 498. (2) Where a mode of acquiring jurisdiction differing from that of the common law is prescribed by statute, nothing less than an exact and rigid compliance with that statute will confer jurisdiction. Harness v Cravens, 126 Mo. 233; Chamberlain v. Blodgett, 96 Mo. 482; Corrigan v. Schmidt, 126 Mo. 304; Skelton v. Sackett, 91 Mo. 377. (3) As it took evidence to show the spoliation of the summons, and as it took evidence to show that the person designated as "M Henman" was no other than Michael Henman, that there was no "M. Henman" and that there was a Michael Henman and that it was he the Westheimer defendants were after in the justice court, this was a case for evidence and for equitable relief. The justice record after reciting that service was made by leaving a true copy, etc., with a member of defendant's family over the age of fifteen years etc., goes on to say that "it appearing from the return of the officer that the defendant was duly served by process as the law directs." Now the summons and the officer's return are proper evidence in such cases to dispute such recitals and are proper evidence in this case. They show the defendant was not properly served with process. (4) Where judgment is void for want of jurisdiction over defendant, the courts are not loath to enjoin the judgment on proper proceedings in equity. High on Injunctions, secs. 228 229; Black on Judgments, sec. 376; Railroad v. Schoenich, 144 Mo. 149.

Street, Easton & Corby for respondent.

(1) "If the judgment of the justice is void, then will the execution issued thereon be void also, and equity will not interfere to do a nugatory act. The remedy of the plaintiff is ample and adequate at law, and this prevents the interposition of a court of equity." Railroad v. Reynolds, 89 Mo. 146; Railroad v. Hoereth, 144 Mo. 149; Railroad v. Lowder, 138 Mo. 533; Howlett v. Turner, 93 Mo.App. 24; Benton County v. Morgan, 163 Mo. 661; Sayre v. Tompkins, 23 Mo. 443; High on Injunctions, secs. 89, 125; 2 Story's Eq. Jur., sec. 898; Russel v. Lumber Co., 112 Mo. 40; Good v. Merkowitz, 35 Mo.App. 658. (2) An injunction will not lie to stay an execution sale simply on the ground that it will pass no title and may cast a cloud on the true owners's title. Drake v. Jones, 27 Mo. 428; Kuhn v. McNeil, 47 Mo. 389; Witthaus v. Bank, 18 Mo.App. 181.



This is a proceeding by injunction to retain defendants from selling certain real estate under execution.

The defendants had obtained judgment against Michael Henman before a justice of the peace, which judgment, upon certificate of the constable that no personal property of defendant could be found, was certified as usual under the statute; whereupon, the clerk of the circuit court issued an execution which was placed in the hands of the sheriff, one of the defendants herein who levied upon certain land of plaintiff which the latter had purchased from said Michael Henman after said judgment had become a lien thereon, and after said sheriff had advertised the property for sale to satisfy the same. This judgment of the justice was rendered on the 17th day of December, 1900.

The plaintiff relies upon the following allegations, viz: That the docket of the said justice fails to show when any summons or process was issued against said Michael Henman in said cause; that it fails to show the return day of such summons or process; that it fails to show the date said summons was made returnable; that said summons was not served upon said Henman; that the same as issued was made returnable on the 14th day of December, 1900, and that the constable changed said date to the 17th day of said month and year; that said docket fails to show that upon the return of the summons served that the justice waited three hours after the time specified in the same for the appearance of defendant; that it does not show that judgment was entered against defendant in his absence or that he made default; that it shows that no evidence was heard in the cause; and that no evidence in fact was heard. It is further alleged that the name of defendant in said cause was not M. Henman; and that there was no complaint or demand filed in said cause to show that the defendant owed plaintiffs therein any debt.

The court on the conclusion of the evidence dismissed plaintiff's bill and he appealed.

Plaintiff asserts, and defendants admit, that the judgment upon which the execution was issued was void in law. Defendants cite the following cases to support their contention that injunction will not lie to restrain a sale of land under an execution issued upon a void judgment, viz: [Railroad v. Reynolds, 89 Mo. 146, 1 S.W. 208; Railroad v. Hoereth, 144 Mo. 136, 45 S.W. 1085; Railroad v. Lowder, 138 Mo. 533, 39 S.W. 799; Howlett v. Turner; 93 Mo.App. 20; Benton County v. Morgan, 163 Mo. 661, 64 S.W. 119; Sayre v. Tompkins, 23 Mo. 443; High on Injunction, secs. 89, 125; 2 Story's Eq. Jur., sec 898; Russell v. Interstate Lumber Co., 112 Mo. 40, 20 S.W. 26; Good v. Merkowitz, 35 Mo.App. 658.] And it must be admitted that as a general rule the law is well settled in this respect in Missouri.

But plaintiff contends that where the proof requisite to establish the fact that a judgment is void rests outside of the record the rule is different, and an injunction in such case is the proper remedy. It has been held that when the opposite party can claim title only through the record, and there is no defect apparent on the record but such defect must be proved by extrinsic evidence, particularly if that evidence depends upon oral testimony to establish it, there is a cloud upon the title and a court of equity may be invoked to remove it. [Clark v. Ins. Co., 52 Mo. 272.] In Verdin v. St Louis, 131 Mo. 26, 33 S.W. 480, Judge BURGESS in his opinion said: "The taxbills, although illegally issued, were a cloud upon plaintiffs' title and rendered the property unsaleable in the market. No one would have purchased or advanced money upon the property with the taxbills against it even though they were void, as the defects in the proceedings previous to their issue, were such as to require legal acumen to discover them, and whether they appear from the face of the proceedings, or by extrinsic evidence, courts of equity will entertain jurisdiction to remove the cloud." But this opinion was not concurred in by a majority of the judges. It appears that the difference in that case arose over the "legal acumen doctrine," and also as to whether a court of equity would afford relief to remove a cloud upon title when it appeared that the proceedings were void upon its face. It seems therefore that the question was not fully determined by the court in that case.

In Clark v. Ins. Co., supra, although asserting that equity would...

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